Legal Narrative
Continuity dressed as reform: From sedition to endangering sovereignty — the language changed, the effect did not.
Introduction
The tension arises between protecting national security and safeguarding the right to free speech has long shaped India’s criminal law. Few provisions captured this tension more sharply than Section 124A of the Indian Penal Code, the colonial-era sedition law. Introduced by the British in 1870 to silence political dissent, it criminalised any words, signs or representations that brought or attempted to bring hatred or contempt or excited disaffection towards the government. For over 150 years it remained on the statute book, surviving independence, the Constitution and repeated judicial scrutiny. Its language was broad, its application often selective, and its chilling effect on legitimate criticism widely documented.
Over the decades, courts tried to narrow its scope. The Supreme Court in Kedar Nath Singh (1962) held that only speech inciting violence or public disorder would attract liability. Later judgments repeatedly cautioned against its misuse. Yet the provision continued to be invoked against journalists, activists, students and political opponents, often for statements that fell well short of any genuine threat to the state. Civil society, law commissions and successive governments acknowledged the problem. The Law Commission’s 279th Report (2023) recommended retention with safeguards, but the political and legal momentum ultimately favoured repeal.
That moment arrived with the Bharatiya Nyaya Sanhita, 2023. When the new code replaced the Indian Penal Code, Section 124A was simply dropped. In its place appeared Section 152, which penalises acts that endanger the sovereignty, unity and integrity of India.The change was presented as a clean break from a colonial relic. Supporters argued that the new provision is narrower, more precise and better aligned with constitutional values. Critics countered that the shift is largely semantic: the core impulse to criminalise certain forms of political speech remains intact, only the vocabulary has been updated.
This Article examines that claim. It asks whether the move from sedition to endangering sovereignty represents genuine reform or merely continuity dressed in contemporary language. The inquiry proceeds along two axes. First, it traces the historical and doctrinal evolution of Section 124A, highlighting the persistent gap between judicial interpretation and everyday enforcement. Second, it analyses the text, legislative intent and early application of Section 152, identifying both the discontinuities that reformers celebrated and the underlying continuities that remain. Special attention is paid to the constitutional free-speech guarantee under Article 19(1)(a) and the permissible restrictions under Article 19(2).
The central argument is measured rather than polemical. The repeal of Section 124A was a necessary and overdue step. Yet the new provision inherits enough of the old structure—particularly its reliance on vague notions of disaffection now recast as threats to sovereignty—to raise legitimate concerns about overbreadth and selective use. Understanding both the rupture and the residual continuity is essential if the criminal law is to strike a more durable balance between the security of the state and the liberty of the citizen. What follows is an attempt to map that balance as it stands after the legislative transition, drawing on statutory text, parliamentary debates, judicial precedent and the limited post enactment practice available so far.
Historical Backdrop of Section 124A
Section 124A did not appear in the original Indian Penal Code of 1860. It was inserted a decade later, in 1870, through an amending Act. The British administration felt the existing law was inadequate to deal with what it saw as growing political unrest, particularly the Wahabi movement and other forms of organised resistance. James Fitzjames Stephen, the principal draftsman, modelled the provision on English notions of seditious libel, yet he deliberately made it wider. The Indian version punished not only words that excited “hatred or contempt” but also those that created “disaffection” towards the government established by law. The term disaffection was left undefined, giving the colonial state considerable room to act.
From the beginning the provision was used as a political tool. The first major trial came in 1897 against Bal Gangadhar Tilak for articles published in Kesari. Tilak was convicted and sentenced to eighteen months’ rigorous imprisonment. A second prosecution followed in 1908, resulting in a six-year sentence. These cases set a pattern. The colonial government invoked Section 124A against nationalist leaders, journalists and organisers whenever public criticism of British rule intensified. Mahatma Gandhi was prosecuted under it in 1922 for articles in Young India.
Annie Besant, Maulana Azad and several other prominent figures faced similar charges. The law became one of the most visible instruments of imperial control over political speech.
Even after independence the section remained untouched. The framers of the Constitution retained the Indian Penal Code almost in its entirety, and Section 124A continued to operate. Early challenges to its constitutionality reached the Supreme Court in the 1950s. In Kedar Nath Singh v. State of Bihar (1962) the Court upheld the provision but read it down. Only speech that incited violence or had the tendency to create public disorder would attract liability. Mere criticism of the government, however strong, was declared protected under Article 19(1)(a). This judicial narrowing was significant, yet it did not remove the provision from the statute book or prevent its continued use.
Throughout the post-independence decades the section was pressed into service during periods of political turbulence—against communists in the 1950s and 1960s, against critics of the Emergency, and later against journalists, students and activists in various states. Each wave of prosecutions revived the old debate: whether a colonial-era law designed to protect an alien government still had a legitimate place in a constitutional democracy. That debate gathered force in the years leading up to the eventual repeal, but the historical roots of Section 124A remained firmly planted in the anxieties of the British Raj and the instruments it forged to silence dissent.
The longevity of the provision, spanning more than 150 years, thus forms the essential backdrop against which any assessment of its repeal and replacement must be made.
Judicial Scrutiny and Growing Criticism
For much of its life Section 124A operated under a judicially imposed restraint that the courts themselves struggled to enforce. The Kedar Nath Case formulation required a clear nexus with violence or public disorder. In theory this should have protected robust criticism of government policy. In practice the gap between principle and application remained wide. Police and prosecuting agencies continued to register cases on the basis of mere disagreement or sharp political commentary. Trials dragged on for years, and the process itself became a form of punishment.
By the 2010s the pattern of misuse had become difficult to ignore. Data compiled by civil society organisations and later acknowledged in official reports showed a steady rise in sedition cases, many of them against journalists, students and ordinary citizens for social media posts or protest slogans. Several High Courts began to express open unease. In some instances they stayed investigations or quashed FIRs at the threshold, citing the Kedar Nath standard. The Supreme Court itself, in a series of interim orders, repeatedly reminded the executive that the provision could not be used as a tool to stifle dissent.
Criticism also came from institutional quarters. The Law Commission of India examined the provision more than once. While its 279th Report in 2023 ultimately recommended retention with certain safeguards, the accompanying discussion revealed deep discomfort with the colonial origins and the practical record of the section. Academic writing and public debate increasingly framed sedition as an anachronism incompatible with a mature constitutional democracy. The cumulative effect of judicial caution, media scrutiny and civil-society pressure created a climate in which retention of the provision in its existing form became politically and legally untenable.
In S.G. Vombatkere v. Union of India (2022), The Supreme Court put Section 124A in abeyance (effectively stayed its operation). It directed that no new FIRs be registered and no coercive action be taken under the provision while the government re-examined it. This order effectively paralysed the colonial law until its formal repeal.
Additionally, in Tejender Pal Singh v. State of Rajasthan (2024) – Rajasthan High Court
The Court quashed an FIR under Section 152 and warned that the provision should not be used to curb peaceful criticism. It held that there must be an imminent connection between the speech and the possibility of rebellion or secession.
From the Allahabad High Court observations (2025)
The Court stressed that “reasonable care” and the standard of a reasonable person must be applied before invoking Section 152. Mere support for a neighbouring country or casual posts, without more, do not attract the section.
The Decision to Repeal The word SEDIATION
The legislative moment arrived with the overhaul of the criminal codes. When the Bharatiya Nyaya Sanhita Bill was introduced, the government announced that Section 124A would be omitted. The official narrative presented the move as a decisive break from colonial legacies. In parliamentary debates and public statements the provision was described as outdated, prone to misuse and no longer necessary in a confident republic. The decision to drop it entirely, rather than amend it, was deliberate. It allowed the government to claim that a long standing demand of free-speech advocates had finally been met.
Yet the repeal was not accompanied by a vacuum. Almost simultaneously a new offence was crafted under Section 152 of the Bharatiya Nyaya Sanhita. The legislative choice was therefore not simply to abandon the field of speech that threatens the state, but to redefine the boundaries of that field in contemporary language. Understanding the decision to repeal thus requires attention both to what was removed and to what was put in its place.
Emergence of the New Endangering Sovereignty Provision
Section 152 of the Bharatiya Nyaya Sanhita criminalises acts that endanger the sovereignty, unity and integrity of India. The text covers words, signs, visible representations, electronic communication and even the use of financial means when they are employed purposely or knowingly to excite secession, armed rebellion, subversive activities or separatist feelings, or otherwise to endanger sovereignty or unity. The punishment ranges from imprisonment up to seven years to life imprisonment, along with fine.
An explanation appended to the section attempts to draw a protective boundary. Comments that express disapprobation of government measures or administrative action, made with a view to obtaining their alteration by lawful means and without exciting the prohibited activities, do not constitute an offence. On its face the provision appears more targeted than the old sedition clause. It speaks of specific harms—secession, armed rebellion, subversion— rather than the elastic concept of disaffection.
The shift in terminology is significant. Sovereignty, unity and integrity are constitutional values expressly recognised in the Preamble and in Article 19(2). By anchoring the offence in these values the legislature sought to place the new provision on firmer constitutional ground than its colonial predecessor. Whether the change in language produces a corresponding change in application remains an open question, one that can only be answered by examining both the continuities and the discontinuities with the old law.
Points of Continuity with the Old Sedition Law
Despite the change in nomenclature, several structural features of Section 124A reappear in Section 152. Both provisions criminalise speech and expressive conduct. Both rely on somewhat open-ended phrases that invite interpretive discretion. The old law spoke of exciting “disaffection”; the new one speaks of endangering “sovereignty, unity and integrity” or encouraging “separatist activities.” While the latter phrases sound more precise, they remain capable of elastic application, especially in the hands of investigating agencies.
The mental element also shows continuity. Section 152 requires that the act be done purposely or knowingly. This is an improvement on the older formulation, yet it still leaves room for inference from surrounding circumstances. In practice, the distinction between legitimate political criticism and speech that crosses into prohibited territory will often turn on the same kinds of judgments that previously determined whether disaffection had been excited.
Perhaps the most important continuity lies in the institutional setting. The same police forces, the same prosecutorial machinery and the same trial courts that once applied Section 124A now apply Section 152. Legal culture changes more slowly than statutory text. Habits of over-charging, the tendency to treat strong dissent as inherently suspicious, and the use of criminal process as a means of harassment do not disappear merely because a new section number has been substituted. Early indicators after the new code came into force suggest that some of the old patterns have begun to reassert themselves under the new label.
Significant Changes in Scope, Language and Intent
There are, nevertheless, genuine differences. The most obvious is the abandonment of the word sedition itself, a term laden with colonial baggage. By discarding it the legislature signalled a symbolic break. More substantively, Section 152 focuses on specific categories of harm—secession, armed rebellion, subversive activities—rather than the broader notion of disaffection towards the government. This narrower focus, if consistently applied, should protect a wider range of political speech.
The explanation clause is another deliberate improvement. It expressly preserves the right to criticise government measures and to seek their alteration by lawful means. Although the Kedar Nath Case had already read a similar limitation into Section 124A, the statutory recognition of that limitation is clearer and more accessible. In addition, the new provision includes electronic communication and financial means within its ambit, reflecting contemporary modes of organisation and propaganda. These inclusions expand the reach of the offence in some directions while the overall framing seeks to confine it in others.
Legislative intent, as expressed in the Statement of Objects and Reasons and in parliamentary discussion, emphasised the need to protect the nation’s unity without stifling legitimate dissent. Whether that intent will be realised depends less on the text alone than on the interpretive choices of courts and the restraint shown by enforcement agencies.
Constitutional and Free-Speech Implications
Any restriction on speech must satisfy the dual requirements of Article 19(2): it must fall within one of the enumerated grounds and it must be a reasonable restriction. Sovereignty and integrity of India is an expressly recognised ground. Section 152 therefore sits more comfortably within the constitutional text than Section 124A ever did. The real question is reasonableness.
A provision that is overbroad or vague risks failing the reasonableness test. If endangering sovereignty or encouraging separatist activities is interpreted to cover ordinary political advocacy, peaceful protest or strong criticism of central policies, the restriction will cease to be reasonable. Courts will be required to develop a jurisprudence that keeps the provision within constitutional bounds, much as they once did with the Kedar Nath case. The early years of Section 152 will therefore be crucial. Clear guidelines from the higher judiciary, analogous to those evolved for sedition, will be necessary if the new offence is to avoid the constitutional infirmities that plagued its predecessor.
Practical Challenges and Enforcement Concerns
Statutory reform is only the first step. The practical challenges that accompanied Section 124A- vague FIRs, prolonged investigations, low rates of conviction coupled with high rates of harassment—are likely to reappear unless deliberate institutional measures accompany the new law. Training of police officers, clearer prosecutorial guidelines, and prompt judicial intervention at the stage of cognisance will be essential.
There is also the risk of forum-shopping and uneven application across states. In a federal polity, the same statutory language can produce markedly different enforcement cultures.
Monitoring mechanisms, periodic review by the Law Commission or a dedicated parliamentary committee, and robust media and civil-society scrutiny will remain necessary safeguards.
CONCLUSION
The repeal of Section 124A and the enactment of Section 152 mark a significant moment in the evolution of Indian criminal law. The colonial sedition provision has been removed from the statute book, and in its place stands a provision framed in the language of constitutional values. That change is real and welcome. At the same time, the new offence retains enough structural similarity with the old one—open-textured language, reliance on executive discretion, and the same enforcement machinery—to counsel caution.
Continuity and change are therefore both present. The continuity lies in the persistent impulse to criminalise certain forms of political speech and in the institutional habits that have long accompanied that impulse. The change lies in the narrower focus on secession, rebellion and subversion, in the clearer statutory protection for lawful criticism, and in the conscious effort to shed colonial terminology. Whether the balance ultimately tilts toward greater protection of free speech will depend less on the words of the statute than on the fidelity with which courts and enforcement agencies apply them.
The name changed. The chill remains.
